Delhi

New Delhi

CC/276/2018

SH. RAJEEV BHASIN - Complainant(s)

Versus

M/S. ARJUN KKR DEVELOPERS LTD. - Opp.Party(s)

19 May 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.276/2018

IN THE MATTER OF:

 

Sh. Rajeev Bhasin

S/o Late Sh. S.N. Bhasin,

R/o H.No. 933, 3^rd Floor,

Dr. Mukherjee Nagar, Delhi-110009.                                   ...Complainant

 

 

VERSUS

 

1. M/s Arjun KKR Developers Limited

Through its Director/Authorized Person

Office At:

1^st Floor, Shopping Arcade

Hotel Connaught, 37, Shaheed Bhagat Singh

Marg, New Delhi-110001

Also At:

Roorkee- Haridwar Highway,

Adjacent Roorkee Engineering College

Roorkee (Uttrakhand)

2. Mr. Ramesh Kakkar

Through Jail Superintendent

Jail No.4,

Director/Authorized Person of

M/s Arjun KKR Developers Limited

Tihar, New Delhi-110001....Opposite Parties

 

Quorum:

 

Ms. Poonam Chaudhry, President

Sh. Bariq Ahmad, Member

Sh. Shekhar Chandra, Member

 

                                                                                                                     Date of Institution:-13.07.2018                                                                                                                                                                          Date of Order   : -  19.05.2023.

 

ORDER

 

 

POONAM CHAUDHRY, PRESIDENT

 

 

1. The present complaint has been filed under Section 12 of the Consumer Protection Act (in short CP Act) against Opposite Parties (in short OP) alleging deficiency of services.
2. Briefly stated the facts of the case are that the complainant booked a residential plot measuring 300 sq. yards in the ARJUN CITY Scheme of OP at Roorkee, Uttranchal vide application No. ACR/01-33 and paid a sum of Rs.2,13,750/- (Rupees Two Lakh Thirteen Thousand Seven Hundred Fifty) in cash on 05.07.2006. The second installment for a sum of Rs.1,28,250/- (Rupees One Lakh Twenty Eight Thousand Two Hundred Fifty) was paid in cash on 22.10.2007. The third installment for a sum of Rs.1,71,000/- (Rupees One Lakh Seventy One Thousand) was paid through cheque bearing No.882867, dated 07.04.2007, drawn on Oriental Bank of Commerce and hence a total sum of Rs.5,13,000/- (Rupees Five Lakh Thirteen Thousand) was paid.
3. It is further alleged that the opposite party/respondent allotted a plot bearing No. H-131 in favour of the complainant in Arjun City, Roorkee, Uttranchal on the basis of draw, measuring 300 sq. yards, vide letter No. AHPL/Admn/Estate/07(08).
4. The OP company later on reduced the size of the plot to 250 sq. yards instead of 300 sq. yards, and the rate was fixed @ Rs.2921/- (Rupees Two Thousand Nine Hundred Twenty One) per sq. yards and the total cost was Rs.6,60,263/- (Rupees Six Lakh Sixty Thousand Two Hundred Sixty Three).
5. It is further stated that despite receiving huge amount from the complainant, the opposite party/respondents intentionally and deliberately did not develop the said  township and failed to handover the possession of the plot to the complainant. It is also alleged that at the time of registration/booking of the plot the respondents assured the complainant that the possession of the developed plot shall be handed over to the complainant within a period of 9 months from the booking/registration of the abovesaid plot. That the complainant has faced a great mental and physical tortures, harassments, mental pain and agony and financial loss due to illegal and unwarranted acts and activities of the respondents.
6. It is also alleged that there is a deficiency in the service of the respondents, as the respondents have not developed the abovesaid township and failed to deliver the possession of the developed plot within a period of 9 months from the date of registration and also failed to refund the amount alongwith interest @ 24% per annum to the complainant, hence the respondents are liable to compensate the complainant to the tune of Rs.5,00,000/- (Rupees Five Lakh Only).
7. It is further alleged that the complainant served a legal notice upon the respondents through his counsel which was duly been served upon the respondent No.2 on 21.04.2018 through Jail Superintendent Jail No.4, Tihar Jail, New Delhi, but despite service respondents neither gave reply nor returned the consideration amount of Rs.5,13,000/- (Rupees Five Lakh Thirteen Thousand) to the complainant alongwith interest and compensation. It is alleged that this Forum has got the jurisdiction to entertain, try and adjudicate the present complaint.
8. It is prayed that respondent be directed to handover the possession of plot in the aforesaid township area measuring 250 sq. yards or return the consideration amount of Rs.5,13,000/- (Rupees Five Lakh Thirteen Thousand) alongwith interest @ 24% per annum till realization, with damages of Rs.5,00,000/- (Rupees Five Lakh) and litigation expenses, in the interest of justice. Respondent be also directed to pay compensation of Rs.5,00,000/- (Rupees Five Lakh) for mental torture, pain and agony and Rs.20,000/- (Rupees Twenty Thousand) as litigation charges.
9. Notice of the complaint was issued to OP. OP entered appearance on 05.03.2020 and sought time to file written statement. On the date of hearing of  12.03.2020 counsel for OP again sought time to file written statement. Vide order dated 05.01.2023. as none has appeared for OP, OP was proceeded exparte.
10. Complainant filed his evidence by affidavit reiterating therein the averments made in the complaint. Complainant relied upon the payment receipts, allotment letter, legal notice.
11. We have heard the Ld. Counsel for Parties and perused the evidence and material on record carefully.
12. Complainant had moved an application for amendment of Para 9 and the prayer clause (a) (b), the same are allowed as they do not change the nature of the case.
13. From the unrebutted evidence of complainant, it has been proved that complainant booked a plot in the project of OP. The complainant had relied upon the letter of allotment and copies of payment receipts of  Rs.5,13,000/- (Rupees Five Lakh Thirteen Thousand), legal notice.
14. It was contended on the behalf of the complainant that OP was deficient in providing its services. It was also submitted that complainant had paid Rs.5,13,000/- (Rupees Five Lakh Thirteen Thousand) but OP failed to deliver the property within 9 months from the date of booking. As regard deficiency in services, Hon’ble Supreme Court has held in Arifur Rahman Khan and Ors. V. DLF Southern Homes Pvt. Ltd. And Ors. 2020(3) RCR Civil 544 that the failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated time frame, amounts to deficiency.
15. It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243 by Hon’ble Supreme Court that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. Person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
16. It is to be noted Section 2 (47) of the Consumer Protection Act, defines ‘unfair trade practices’ in the following words: “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice” and includes any of the practices enumerated therein. The Hon’ble Supreme Court held in above case of Lucknow Development Authority Vs. M.k. Gupta, 1994(1) SCC 243, that when possession is not handed over within the stipulated period, the delay so caused is not only deficiency of service but also unfair trade practice.
17. It is also pertinent to note Hon’ble Supreme Court also held in Fortune Infrastructure and Anr. Vs. Trevor D’Lima and Ors.2018(5) SCC 442 that a person cannot be made to wait indefinitely for possession of flat and they are entitled to seek refund of the amount paid by them along with compensation.

Thus as the services of OP were deficient, the complainant was justified in claiming refund of the amount deposited by him with compensation.

18. We are further of the view that the cause of action being the continuing one as the amount advanced by complainant was not refunded neither possession of the plot was handed over to him, the complaint is within the period of limitation.
19. We thus, hold that OP/ Arjun KKR Developers Limited was guilty of deficiency in services. We accordingly direct OP/Arjun KKR Developers Limited to refund the amount Rs.5,13,000/- (Rupees Five Lakh Thirteen Thousand) to the complainant along with interest @ 9% p.a. from the date of each deposit till realization within a period of 4 weeks from the date of receipt of order, failing which OP will be liable to pay interest @ 12% p.a. till realization. We also award Rs.1,00,000/- (One Lakh) as compensation for mental agony caused to complainant and Rs.25,000/- (Rupees Twenty Five Thousand) as cost of litigation

A copy of this order be provided/sent to all parties free of cost. The order be uploaded on the website of this Commission.

File be consigned to record room along with a copy of the order.

 

 

Poonam Chaudhry

(President)

Bariq Ahmad                                                                  Shekhar Chandra

                                                        (Member)                                                                          (Member)